Citation NR: 9741812
Decision Date: 12/18/97 Archive Date: 12/30/97
DOCKET NO. 95-28 398 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in New
Orleans, Louisiana
THE ISSUES
1. Entitlement to compensation pursuant to 38 U.S.C.A.
§ 1151 (West 1991 & Supp. 1997) for right eye disability as
the result of treatment by the Department of Veterans
Affairs.
2. Entitlement to an evaluation in excess of 10 percent for
a shell fragment wound of the anterior aspect of the left leg
with herniation of Muscle Group XII.
3. Entitlement to an evaluation in excess of 10 percent for
chronic venous insufficiency.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
James L. March, Counsel
INTRODUCTION
The veteran served on active duty from January 1964 to
January 1968. This matter come to the Board of Veterans’
Appeals (Board) from rating decisions of the Department of
Veterans Affairs (VA) Regional Office (RO) in New Orleans,
Louisiana. In April 1997, a hearing was held at the RO
before the Board member signing below.
REMAND
The veteran has received VA medical care over the years for
both right and left eye disabilities. He contends that
during a 1994 surgical procedure at the VA Medical Center
(VAMC) in New Orleans, equipment malfunctioned causing him to
lose vision in his right eye. He stated that because of the
equipment malfunction, the VA physician referred the veteran
to the Tulane Medical Center. There are no VA medical
reports of an incident as described by the veteran currently
of record. Similarly, there are no records from Tulane
Medical Center. Further evidentiary development is required
before final appellate action.
In January 1996, the veteran was seen as an outpatient
complaining of tightening in his left leg. It was noted that
he was a U.S. Postal Service letter carrier and that he
complained it was hard to walk. It was further noted that he
was diabetic and on insulin. It was reported that the
veteran had a history of chronic pain in the left leg since
1982. His reported history indicates that he still had
shrapnel in the tibia but that he apparently had been
evaluated by an orthopedist who told him that nothing could
be done. The diagnosis was chronic pain, left leg.
In February 1996, he was seen again complaining of leg
swelling. It was noted that he had a history of chronic pain
of the left leg since 1982, due to a shrapnel wound. He
reported increased pain along the lower third of the leg.
Examination revealed no swelling, redness or increased heat.
The diagnosis was chronic pain, left leg. X-rays revealed
bony exostosis of the proximal and distal tibia.
An April 1997 VA outpatient treatment report was received,
and was accompanied by a waiver of consideration by the RO.
The veteran was seen complaining of swelling to the lower
portion of the left leg. It was noted that he had a history
of chronic venous insufficiency, hypertension and Type I-
diabetes mellitus. The veteran complained of a
throbbing/aching pain. Physical examination revealed
symmetrical legs with pulses plus 1. There was full range of
motion and negative Homans’ sign. The diagnosis was chronic
venous insufficiency.
At the veteran’s April 1997 personal hearing, he testified
that the venous insufficiency was worsening every day. He
stated that his leg gets numb and that it swells. He
reported that he had missed a number of days from work and
that if he was not a Purple Heart recipient, he would have
been fired a long time ago. He stated that he wore a Jobst
stocking, which helped.
The most recent VA examination of the veteran was in November
1995. It appears that the veteran’s leg disabilities may
have worsened since that time. It is unclear, however,
whether the worsening is due to his service-connected
vascular disability or muscular disability.
In light of the foregoing, the Board is REMANDING this case
for the following actions:
1. The RO should afford the veteran the
opportunity to submit or identify any
other evidence pertinent to his claim for
benefits pursuant to 38 U.S.C.A. § 1151,
as well as any left leg disability. With
any necessary authorization from the
veteran, the RO should attempt to obtain
copies of pertinent treatment records
identified by the veteran in response to
this request, which have not been
previously secured. The RO should
specifically request records concerning
treatment of the veteran since 1994 from
the Tulane Medical Center.
2. The RO should contact, in writing,
the Director of the New Orleans VAMC,
attaching a copy of this remand, and
request the veteran’s original, complete
clinical file. This file should include,
but not be limited to, records of all
procedures undertaken in 1994, to include
doctors’ notes, nursing notes, surgical
reports, laboratory findings regarding
infection, documentation for informed
consent, request for administration of
anesthesia and for the performance of
operations and other procedures,
documentation of the discussion between
the practitioner obtaining consent and
the patient, and any reports of
investigations, if undertaken. If
original records are unavailable, the
custodian of the records should certify
what information is present, including
whether the records have been transferred
to another medical care facility or
retired to a Federal Records center. All
records obtained, as well as the
certifications by the custodians of the
records and the VAMC Director, should be
associated with the claims folder.
3. Then, if warranted following the
above development, the RO should schedule
the veteran for a comprehensive VA
examination by a board-certified
ophthalmologist, if available, to
determine the nature and extent of his
bilateral eye disorder. The examination
should be conducted at a facility other
than the New Orleans VAMC. All indicated
tests must be conducted. The claims file
must be made available to and reviewed by
the examiner prior to the requested
study. The examiner should provide an
opinion as to whether it is at least as
likely as not that any current right eye
disorder occurred as a result of a
surgical procedure at the VAMC in New
Orleans. A complete rationale for any
opinion expressed must be provided.
4. The RO should schedule the veteran
for a comprehensive VA examination by a
board-certified orthopedist, if
available, to determine the current
severity of his service-connected shell
fragment wound of the anterior aspect of
the left leg with herniation of Muscle
Group XII. All indicated tests,
including X-rays, must be conducted. The
claims file must be made available to and
reviewed by the examiner prior to the
requested study. The examiner should
fully describe the nature of the wound
residuals, to include a detailed account
of the muscle injuries, muscle groups
involved, nerve involvement, as well as
the nature and extent of any functional
impairment caused or aggravated by the
wound residuals, including pain. After
reviewing the X-ray reports, the examiner
should state whether there are any
retained fragments. In addition, the
examiner should state whether the bony
exostosis, identified by X-ray in
February 1996, is attributable to his
service-connected disability. Finally,
the examiner should provide an opinion
concerning the effect of the veteran’s
shell fragment wound of the anterior
aspect of the left leg with herniation of
Muscle Group XII on his employability. A
complete rationale for any opinion
expressed must be provided.
5. The RO should schedule the veteran
for a comprehensive VA examination by a
board-certified vascular specialist, if
available, to determine the current
severity of his chronic venous
insufficiency. All indicated tests must
be conducted. The claims file must be
made available to and reviewed by the
examiner prior to the requested study.
The examiner should describe any
swelling, discoloration, pigmentation,
cyanosis, eczema or ulceration. The
examiner should provide an opinion
concerning the effect of the veteran’s
chronic venous insufficiency on his
employability. A complete rationale for
any opinion expressed must be provided.
6. After the above has been completed,
the RO should conduct any additional
indicated development and readjudicate
the veteran’s claim for benefits pursuant
to the provisions of 38 U.S.C.A. § 1151,
the provisions of the revised 38 C.F.R.
§ 3.358(c), and the holdings of Gardner
v. Derwinski, 1 Vet.App. 584 (1991),
aff’d sub nom., Gardner v. Brown, 5 F.3d
1456 (Fed. Cir. 1993), aff’d sub nom.,
Brown v. Gardner, 115 S. Ct. 552 (1994).
The RO should readjudicate the two
increased rating issues on appeal.
If the benefit sought on appeal is not granted to the
veteran’s satisfaction, he and his representative should be
issued a Supplemental Statement of the Case, and be afforded
a reasonable opportunity to reply. Thereafter, the case
should be returned to the Board for further appellate
consideration, if otherwise in order. In taking this action,
the Board implies no conclusion as to any ultimate outcome
warranted. No action is required of the veteran until he is
otherwise notified by the RO.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1997) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
STEVEN L. KELLER
Member, Board of Veterans’ Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans’ Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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